Sunday, May 17, 2015

Beware The Con Game Of Conservatorships

by Richard Eisenberg

Since May is Older Americans Month — established by JFK in
1963 when it was called Senior Citizens Month — it’s an appropriate time
to sound an alert about a con game being played on some older
Americans. I’m talking about crooks who are appointed as conservators (or guardians) to manage someone's affairs and then turn their wards into financial abuse victims.

This scourge was brought to my attention by the new book, The Con Game: A Failure of Trust,
by T.S. Laham, a business professor at Diablo Valley College in the San
Francisco Bay Area. In the book, Laham writes that America’s
guardianship system is “an open invitation to potential abuse.”

Good and Bad Conservators

Roughly 1.5 million adults are under guardianship, according to a 2013 AARP estimate. Of course, many court-appointed conservators are wholly reputable; some, such as the one Mickey Rooney had, are even brought in to quash alleged elder abuse.

I
recently interviewed Laham about her conservatorship concerns and to
get her advice for families considering getting a conservator appointed
for a relative or eager to have an unscrupulous conservator removed.
Highlights:

Next Avenue: Why did you write ‘The Con Game’ and who is it for?

Laham: I decided to write it to shine a public spotlight on elder abuse in America. The problem is escalating.

Is the problem with conservators that family members
or supposed friends are appointed conservators and they steal? Or that
courts are appointing other people who turn out to be crooks?

All of the above.

I’m trying to show that there are some problems in the
system that are fixable. Most have to do with oversight and
accountability. I assumed that the system was well-regulated and
controlled, but that’s not true.

A judge appoints a “reasonable” person or organization as a
conservator or guardian to make medical and/or financial decisions for
an adult who would be considered a conservatee or a ward. The
conservatorship ends when the conservatee dies.

What are the problems with conservatorships?

Conservatorships are not a bad thing; they’re necessary. It’s the execution of them that could be improved at times.

But people need to understand that conservatorships should
be considered as the most restrictive form of court intervention. They
can strip people of their individual rights.

And a conservatorship can create more complications; the family may need to sit on the sidelines because the conservator removes decision-making control from them.

What else concerns you about them?

Conservatorships are costly. There are filing fees, maybe
attorney fees and ongoing legal costs. Conservator fees range from $50
an hour to $135 an hour or more. Trustee and other professional asset
manager fees for high-value estates typically run from 1 to 1.5% of the
asset value annually.

Is part of the problem that court-appointed guardians lack training for the job?

That is precisely correct. It’s a huge responsibility to be a
conservator or a guardian. Most of time these individuals do incredible
loving, caring compassionate jobs caring for relatives or friends.
But the problem is they may be overwhelmed or undertrained. One survey
found that fewer than 20% of courts gave conservators and guardians
instructions on carrying out their duties and legal responsibilities.

Is it a good idea to bring in a conservator when a family can’t agree on how to manage their parent’s affairs?

If you want to use a conservatorship for a family dispute about an incapacitated elderly relative, that may not be the right thing to do.

A better option is to go through facilitative meditation,
unless the situation is so polarized that the only other option is to go
to conservatorship. A conservatorship should be a last resort as a
solution to a family dispute.

What would you advise families to do if they think a relative does need a conservator?

I strongly urge people to see an attorney who specializes in
this area or in elder law and discuss whether conservatorship is an
appropriate solution to the situation. The National Academy of Elder Law Attorneys is an excellent resource; they will point you in the right direction.

If a son thinks his mother is unable to manage her affairs,
for example, he should provide the attorney with information to prove
this to file a petition with the court. If the judge believes it’s
warranted, he or she will grant the power to the son.

I’d also recommend that a family get help: There are
care-management services and caregiving alliances. For financial
assistance, get a financial adviser.

For someone appointed as a conservator, the federal Consumer Financial Protection Bureau has a helpful guide, called Managing Someone Else’s Money.

And what should a family do if a conservator was appointed and they spot danger?

The family has to go to
court to see if they can get the conservator removed. You have to prove
the person isn’t doing the job — maybe he’s neglecting mom’s needs or missing assets. It’s an uphill battle.

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NASGA (National Association to STOP Guardian Abuse, Inc.) is a 501(c)(3) public-interest, civil rights organization formed by victims of unlawful and abusive guardianships and conservatorships. We seek legislative reform of existing law and upgrading of criminal penalties for court-appointed fiduciaries misusing protective proceedings for unjust enrichment and engaging in elder and family abuse.

Our mission is to promote the safety and well being of vulnerable persons subject to injury and damage in their person and property through unlawful and abusive guardianship and/or conservatorship proceedings; to end the growing violations of due process, civil and human rights; to work towards ultimate legislative reform of guardianship as presently practiced; upgrading of criminal penalties for court-appointed fiduciaries misusing protective proceedings for unjust enrichment; and to be a support organization for victims and their families. We carry out our mission through research, outreach, education and advocacy; and going forward, by alliance with community interest, law reform, civil rights and other advocacy organizations.

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